Pubdate: Thu, 28 Feb 2013
Source: StarPhoenix, The (CN SN)
Copyright: 2013 The StarPhoenix
Author: Les MacPherson
Page: A3


Today, we're going to play You Be the Judge. You are only competing
against The Honourable Martel Popescul, chief justice of
Saskatchewan's Court of Queen's Bench, who presided over the trial.
The following details are from his written judgment, issued last week:

The case begins in the fall of 2010 with a young woman driving alone
in her sister's 2002 Acura from Calgary to Winnipeg. Near Swift
Current on Highway 1, she is seen by a patrolling RCMP officer to be
using a handheld cellphone. She stops promptly when the red and blue
lights come on behind her.

When the officer approaches her car, he finds her accompanied by a
small dog, barking its head off. He has to ask her three times to
produce her papers. She seems more nervous than circumstances seem to
warrant, he testifies. She keeps insisting she was not speeding or
using the cellphone visible on the console.

Back in his own vehicle, the officer learns through his mobile
computer that the car is not registered to the driver and that the
driver had at one time faced a criminal charge related to a marijuana
grow-op. The charge was stayed a year ago when the prosecution, for
reasons unknown, chose not to proceed.

Suspecting that the driver is a drug courier, the officer detains the
driver while another officer brings a drug sniffing dog to the scene.
The dog signals that drugs are present in the vehicle and a search
reveals 10 kilos of marijuana in a storage tub in the trunk.

At her trial, the accused argued the marijuana should not be accepted
into evidence. Police only found it, she says, by violating her right
to freedom from unreasonable search and seizure, among others.

The prosecution argued the search was justified based on observations
that the officer knew through his training and experience to be
indicative of illegal drugs. He had completed and was now an
instructor in the RCMP's Pipeline Convoy training program, in which
officers learn how to identify drug couriers on the highway. The
officer had taught the course in Canada and internationally and used
its methods to intercept more than 600 drug couriers.

Alas, the officer was not asked how many drivers he has searched and
found not to be drug couriers. He did testify in detail, however, as
to how drug couriers give themselves away. They use third-party
vehicles, for example, so a routine licence plate check will not
reveal their criminal records.

They travel with a dog to distract the drug-sniffing dog. They often
travel from Calgary, a drug distribution centre, to Winnipeg, a drug

The accused in this case rang all the bells, as well as being nervous
and slow to produce identification, presumably so the officer would
not learn of her previous marijuana charges.

Defence counsel for the accused argues there could be innocent reasons
for any of the so-called indicators. A lot of people drive from
Calgary to Winnipeg. A lot of people travel with a dog. A lot of
people are nervous when stopped by police. A lot of people drive
vehicles registered to someone else, and so on. The accused produced
her licence within a minute of being asked. Other important indicators
were absent, including evidence of the vehicle being lived in and the
smell of marijuana or air freshener.

So that's the case, more or less. Do you allow the marijuana to be
entered as evidence and convict the accused or do you acquit to
protect us all from unreasonable searches?

If you entered a conviction, you are on side with Chief Justice
Popescul. He found the police search to be justified by the
accumulation of indicators, however innocent they might appear when
viewed individually. Using the stayed charge as grounds for suspicion,
the judge conceded, was "problematic," given the legal presumption of
innocence. He ruled, however, that the charge had investigative value
and there was no good reason for the officer not to consider it, along
with all the other indicators.

Drug couriers will be thinking about changing their procedures.
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